Cross-examination of Mdluli prosecutor set to continue at Mokgoro inquiry

A senior prosecutor was “worried” that, when corruption charges were dropped against Richard Mdluli, the former crime intelligence boss was “being protected,” he told the Mokgoro enquiry on Thursday.

Senior prosecutor Jan Ferreira of the specialised commercial crime unit was testifying at the Mokgoro inquiry into the fitness for office suspended deputy national director of public prosecutions, Nomgcobo Jiba, and of the head of the specialised commercial crime unit, Lawrence Mrwebi. Ferreira’s cross examination is due to continue on Friday.

The inquiry — chaired by former Constitutional Court justice Yvonne Mokgoro — was established by President Cyril Ramaphosa to look into whether Jiba and Mrwebi are fit for office, after the two had been roundly criticised in a number of court judgments in high profile and politically sensitive court cases.

Ferreira was allowed to testify after Mokgoro’s panel ruled that it had found “no basis in law and within the parameters of this enquiry” to preclude Ferreira from testifying.

On Wednesday, the inquiry was put on hold because Jiba’s legal team raised a concern about him testifying because he was the prosecutor who was expected to prosecute Jiba on fraud and perjury charges, should the prosecution go ahead.

In his evidence, Ferreira said there was a strong prima facie case against Mdluli and he believed they had all the evidence they needed to secure a conviction. The reasons for dropping charges against him “made no sense”, he added.

READ MORE: The struggle to find a smoking gun

In his affidavit, he stated: “As soon as Adv Mrwebi started engaging on the merits of the prosecution I was concerned that this was directed at stopping the prosecution”.

He said this was because Mrwebi, as SCCU head, was not the person authorised to deal with the Mdluli case. The person who should have deciding whether the case should go ahead was — in terms of the way authority had been delegated by former NDPP Menzi Simelane — the deputy director for North Gauteng Sibongile Mzinyathi.

After the decision was made by Mrwebi to discontinue the prosecution, Ferreira and his then supervisor Glynnis Breytenbach co-authored a memorandum to Jiba who was then acting NDPP, asking her to review Mrwebi’s decision.

In it, they said Mdluli’s case should be treated like any other. Instead “the impression has now been created, whether correctly or incorrectly, that Mdluli (is) being treated differentially and preferentially,” they said.

They also took issue with Mrwebi’s view that the allegations against Mdluli should be dealt with by the inspector general of intelligence and not by the NPA. Complaints of maladministration or abuse of power by intelligence officials are supposed to be made to the IG. But this was not maladministration, Ferreira said. “I think it’s clear that these were criminal acts of corruption.”

In response to cross-examination by Mrwebi’s counsel, Ally Ramawele SC, Ferreira said he had no further evidence that Mdluli was being protected — other than what he had already said: that there was a strong prima facie case, that it was ready for court, that the reason provided for not prosecuting did not make sense and that their memo to Jiba was ignored. He said it was up to the enquiry to “make its own conclusions”.

Ramawele began to ask questions about the “narrative” that Mdluli was close to former President Jacob Zuma, saying he wanted to put some things on record so as not to “contaminate the atmosphere” of the enquiry.

READ MORE: Top NPA prosecutors lacked the will to probe foreign bribery cases, inquiry hears

However, he was interrupted by panelist Kgomotso Moroka SC, who suggested the enquiry deal with “facts, and not atmosphere”. Mokgoro followed up by saying that, at the inquiry’s pre-hearing meetings, the panel had made it clear that the inquiry would deal with the evidence, which had been put before the courts in the relevant cases and as set out in the terms of reference.

Ramawele said he was content to leave this aspect for legal argument. He will continue to cross-examine on Friday.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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